Read the U.S. Fifth Circuit Court of Appeals' decision
affirming this case.

Students of the Houston Independent School District sued
to prevent the district from teaching evolution and from
adopting textbooks that incorporated evolution. The trial
court found unconvincing the students' argument that the
school district was violating the Establishment Clause of
the First Amendment, and the court dismissed the students'
complaint.

Students of Houston Independent School District sued for
an injunction to block the district from teaching the
theory of evolution as part of its curriculum and from
adopting textbooks that taught evolution, on the ground
that these actions inhibited them in the free exercise of
their religion and constituted an establishment of
religion. The defendants moved to dismiss the complaint for
failure to state a claim upon which relief could be
granted. The District Court, Seals, J., dismissed the
complaint for failure to state a claim.

Plaintiffs-students of the Houston Independent School
District-here seek to enjoin the District and the State
Board of Education from teaching the theory of evolution as
part of the District's academic curriculum and from
adopting textbooks which present that theory without
critical analysis and to the exclusion of other theories
regarding the origins of man. Plaintiffs base their claim
for relief upon the provisions of 42 U.S.C. § 1983.
Jurisdiction is invoked pursuant to 28 U.S.C. § 1343.
The case is presently before the Court on Defendants'
motion to dismiss for failure to state a claim.[1]

Plaintiffs' principal contention is that the teaching of
the theory of evolution in the Houston Independent School
District inhibits Plaintiffs in the free exercise of their
religion and constitutes an "establishment of religion," in
contravention of the first amendment to the United States
Constitution. [2] The
theory of evolution is, according to Plaintiffs, presented
by Defendants without critical analysis and without
reference to other theories which purport to explain the
origin of the human species. The "other theory" whose case
Plaintiffs here champion is the explanation derived from
the Bible, the basis of which is that man was created by
God. In Plaintiffs' view, the theory of evolution is so
inimical to the Creation account that its presentation as
part of the academic curriculum should be deemed a direct
attack upon Plaintiffs' religious beliefs by an organ of
government. The State, by implicitly rejecting a central
tenet of Plaintiffs' religion, is holding that religion up
to contempt, scorn, and ridicule, and is thus acting to
discourage, if not to restrain, Plaintiffs in the free
exercise of their religion.

Plaintiffs also argue a constitutional deprivation in
terms of the Establishment clause of the first amendment.
Plaintiffs maintain that, by restricting the study of human
origins to an uncritical examination of the theory of
evolution, Defendants are lending official support to a
"religion of secularism." [3] Under the guise of scientific theory,
Plaintiffs submit that Defendants are engaged in the
propagation of a doctrine that is fundamentally religious
in nature, and thus, are "establishing" a particular
religion in contravention of the first amendment.

Plaintiffs contend that Defendants' teaching of the
theory of evolution violates the doctrine of neutrality
which the Supreme Court has held must be State policy in
matters of religion. [4] The principle of neutrality was most
recently affirmed by the Court in Epperson v.
Arkansas, 393 U.S. 97, 89 S.Ct. 266, 21 L.Ed.2d 228
(1968). In that case, the Court struck down an Arkansas
statute which prohibited any teacher in a state school from
teaching the theory of evolution. The Court had

"*** no doubt that Arkansas has sought to prevent its
teachers from discussing the theory of evolution because it
is contrary to the belief of some that the Book of Genesis
must be the exclusive source of doctrine as to the origin
of man." Epperson,
supra, at 107, 89 S.Ct. at 272.

Such a statute, since it

"*** was confined to an attempt to blot out a particular
theory because of its supposed conflict with the Biblical
account, literally read,"

could not pass the test of religious neutrality whose
standard the Constitution requires all organs of government
to uphold. Id., at 109, 89 S.Ct. at 273.

Plaintiffs have thus attempted to draw an analogy
between the Arkansas prohibition and the teaching of the
theory of evolution in the Houston Independent School
District. From that position, Plaintiffs would suggest an
appropriately analogous remedy: an injunction against the
teaching of the theory of evolution. But Plaintiffs have
wholly failed to establish the analogy.

In the first place, Arkansas chose to promote a
particular view regarding human origins by means of
legislative enactment. It was clear to the Supreme
Court

"*** that fundamentalist sectarian conviction was and is
the law's reason for existence." Id., at 108,
89 S.Ct. at 272.

Defendants, however, are not acting pursuant either to
State law or school district regulation. Plaintiffs have
not alleged that there exists even a school district policy
regarding the theory of evolution. All that can be said is
that certain textbooks selected by school officials present
what Plaintiffs deem a biased view in support of the
theory. This Court has been cited to no case in which so
nebulous an intrusion upon the principle of religious
neutrality has been condemned by the Supreme Court.

Neither have Plaintiffs alleged that Defendants attempt
to discourage the free discussion of the subject of human
origins. There has no suggestion that Plaintiffs, or any
other students, have been denied the opportunity to
challenge their teachers' presentation of the Darwinian
theory. Arkansas, on the other hand, prohibited any
discussion of the subject of evolution.

In short, whereas Arkansas labelled as a criminal
offense the mere reference to an entire body of scientific
opinion, neither the State of Texas nor the Houston
Independent School District has given legislative
expression to any view of the subject of evolution. The
State, at most, has a general policy of approving textbooks
which present the theory of evolution in a favorable light.
No position regarding human origins is even indirectly
proscribed by State or District. Furthermore, Plaintiffs
have failed even to assert the suppression of opposing
ideas. Clearly, Defendants' "policy" (or lack thereof)
regarding the theory of evolution is far removed from
Arkansas' blanket censorship.

Plaintiffs' case depends in large measure upon their
demonstrating a connection between "religion," as employed
in the first amendment, and Defendants' approach to the
subject of evolution. [5] The Court is convinced that the
connection is too tenuous a thread on which to base a first
amendment complaint.

In Cornwell v. State Board of Education,
314 F.Supp. 340 (D. Md. 1969), aff'd, 428 F.2d 471 (4th
Cir. 1970), a group of Baltimore children and their parents
sought to enjoin the enforcement of a bylaw, adopted by the
State Board of Education, requiring "the local school
system to provide a comprehensive program of family life
and sex education in every elementary and secondary school
for all students." Among other contentions, the Plaintiffs
asserted that the sex education program constituted an
establishment of religion and that its implementation
denied to them the free exercise of their religious
beliefs: Reminding Plaintiffs that the first amendment does
not say that in all respects there must be a separation of
church and state, the District Court applied the test
devised by the Supreme Court in School District of
Abington Township v. Schempp, 374 U.S. 203, 83 S.Ct.
1560, 10 L.Ed.2d 844 (1963), for determining the validity
of a legislative provision under the Establishment Clause
of the first amendment:

"[W]hat are the purpose and the primary effect of the
enactment? If either is the advancement or inhibition of
religion then the enactment exceeds the scope of
legislative power as circumscribed by the Constitution."
Schempp, supra, at 222, 83 S.Ct. at 1571.

The Cornwell court was convinced that the

"*** purpose and primary effect of the bylaw here is not
to establish any particular religious dogma or precept, and
that the bylaw does not directly or substantially involve
the state in religious exercises or in the favoring of
religion or any particular religion."
Cornwell, supra, at 344.

In the case at bar, the offending material is peripheral
to the matter of religion. Science and religion necessarily
deal with many of the same questions, and they may
frequently provide conflicting answers. But, as the Supreme
Court wrote twenty years ago, it is not the business of
government to suppress real or imagined attacks upon a
particular religious doctrine. Burstyn v.
Wilson, 343 U.S. 495, 505, 72 S.Ct. 777, 96 L.Ed.
1098 (1952). Teachers of science in the public schools
should not be expected to avoid the discussion of every
scientific issue on which some religion claims
expertise.

Avoidance of any reference to the subject of human
origins is, indeed, a decidedly totalitarian approach to
the problem presented here. Book-burning is always
dangerous, but never more dangerous than when practiced on
behalf of young and impressionable minds. How is the
teacher to respond to the inquiry of a high school biology
student regarding the theory of evolution? Is he to be told
that the subject is taboo, that the teacher is not
permitted to speak of it, that he mustn't ask such
questions?

Plaintiffs, however, would propose another approach
that, at first glance, seems reasonable and fair: "equal
time" for all theories regarding human origins. [6] If the beliefs of
fundamentalism were the sole alternative to the Darwinian
theory, such a remedy might at least be feasible. But
virtually every religion known to man holds its own
peculiar view of human origins. Within the scientific
community itself, there is much debate over the details of
the theory of evolution. This Court is hardly qualified to
select from among the available theories those which merit
attention in a public school biology class. Nor have
Plaintiffs suggested to the Court what standards might be
applied in making such a selection.

Plaintiffs' case must ultimately fail, then, because the
proposed solutions are more onerous than the problem they
purport to alleviate. For this Court to require the
District to keep silent on the subject of evolution is to
do that which the Supreme Court has declared the Arkansas
legislature is powerless to do. To insist upon the
presentation of all theories of human origins is, on the
other hand, to prescribe a remedy that is impractical,
unworkable and ineffective.

The State Board of Education, as one of the Defendants
in this action, has suggested that Plaintiffs may be
assisted by taking advantage of the provisions of §
21.104 of the Texas Education Code, V.T.C.A., which permits
any child to be exempted, without penalty, from receiving
instruction in certain areas of physiology and hygiene,
upon the presentation of a signed statement from his parent
or guardian that the material conflicts with the family's
religious beliefs. [7] Defendants maintain that § 21.104
is broad enough to encompass Plaintiffs' objections to the
teaching of the theory of evolution.

Plaintiffs assert, however, that reliance on §
21.104 is misplaced, because the requirement of a signed
statement compels a student "to profess a belief" in a
religion, contrary to the Supreme Court's decision in
Torcaso v. Watkins, 367 U.S. 488, 81 S.Ct.
1680, 6 L.Ed.2d 982 (1961). Torcaso, however,
dealt with a provision of the Maryland Constitution which
required declaration of a belief in the existence of God as
a qualification for holding public office. The State
contended that the Maryland Court of Appeals, in upholding
the qualification, had been acting on the authority of
Zorach v. Clauson, 343 U.S. 306, 72 S.Ct. 679,
96 L.Ed. 954 (1951). Zorach had upheld the
validity of a New York City "released time" program which
permitted interested students to attend religious courses
operated outside the school building by various religious
groups, with all other students remaining in the classroom.
The Supreme Court, in Torcaso took care to
distinguish Zorach and to express the view
that, to whatever extent that case had breached the wall
separating church and state, it had not

"*** open[ed] the way for government, state or federal,
to restore the historically and constitutionally
discredited policy of probing religious beliefs by test
oaths ***. Torcaso, supra, 367 U.S. at 494, 81
S.Ct. at 1683.

The Supreme Court, presented in Torcaso
with an opportunity to impose a narrowly restricted reading
upon its decision in Zorach, declined to do
so. And Zorach, thus affirmed, provides the
answer to Plaintiffs' discomfort with the alternative of
§ 21.104:

"It takes obtuse reasoning to inject any issue of the
'free exercise' of religion into the present case. No one
is forced to go to the religious classroom and no religious
exercise or instruction is brought to the classrooms of the
public schools. A student need not take religious
instruction. He is left to his own desires as to the manner
or time of his religious devotions, if any."
Zorach, supra, 343 U.S. at 311, 72 S.Ct. at
682.

Plaintiffs in the case at bar are attempting to have it
both ways. On the one hand, they argue that they are forced
to submit to teachings which deeply offend their religious
beliefs. And yet they reject the option of leaving the
classroom during the presentation of the offending
material, contending that their exit under such
circumstances is equivalent to the coerced expression of
religious belief. For that matter, the mere filing of the
present civil action puts Plaintiffs on record as holding
certain religious views. But the fundamental difference
between the compulsion of a test oath and that of a
"released time" program, or that underlying § 21.104
is simply too great to ignore.

The Court thus finds that, under the facts pleaded, each
of Plaintiffs' contentions regarding the teaching of the
theory of evolution in the Houston public schools-that it
inhibits Plaintiffs in the free exercise of their religion
and that it constitutes an establishment of religion-fails
to state a claim upon which relief can be granted. Although
they have made no effort to develop the issue, Plaintiffs
have also asserted that the teaching of the theory of
evolution denies to them the equal protection of the laws,
in contravention of the fourteenth amendment. Since
Plaintiffs have failed to indicate the manner in which they
have been denied the equal protection of the laws, the
Court will merely note that Defendants' presentation of the
theory of evolution seems to apply equally to all students.
Thus, it appears that Plaintiffs' equal protection
contention also fails to state a claim upon which relief
can be granted.

Accordingly, Defendants' motion to dismiss for failure
to state a claim is granted and this cause of action is
hereby dismissed.

1. This case
has been repeatedly delayed by a number of unfortunate
circumstances. The principal Plaintiff, Mrs. Leona Weber,
an obviously sincere and concerned parent, initiated the
suit on November 17, 1970. A month later, the original
counsel withdrew and a second attorney took up the case.
Defendants filed their motion to dismiss on January 22,
1971. On March 29, 1971, a pretrial conference was held and
the case was set on the Court's October trial assignment.
On June 2, 1971, Mrs. Weber's second attorney asked for
permission to withdraw. Upon granting this request, the
Court directed Plaintiffs to submit the name of a new
attorney within ten days. At Plaintiffs' request, the Court
extended this date to August 1, 1971. Since Plaintiffs had
not by that date been able to employ counsel, the Court
granted a further indefinite extension, but set the case
for the November trial assignment. The Court was notified
on October 20, 1971, that Plaintiffs had retained new
counsel, who requested and received permission to continue
the case from the November docket. On November 17, 1971,
however, this third set of attorneys asked for leave to
withdraw, and the Court granted the motion. On December 6,
1971, the case was passed, at the request of Mrs. Weber, to
the February 1972 trial assignment. Mrs. Weber agreed in
open court that the case, if not prosecuted at that time,
would be dismissed. At the February docket call, Plaintiff
John R. Brown moved to intervene, which motion was opposed
by Mrs. Weber. The Court granted Dr. Brown permission to
intervene on March 27, 1972. That attorney sought to
withdraw as Mrs. Weber's counsel on April 5, 1972, although
he would continue to represent Mrs. Drew. The Court granted
leave to withdraw on April 13. On May 9, 1972, Mrs. Weber
informed the Court of her inability to employ counsel, and,
at her request, the Court granted her leave to proceed pro
se. On June 14, 1972, Mrs. Weber, Mrs. Drew, and Dr. Brown
each sought to bring in additional plaintiffs. On June 21,
1972, the Court held a hearing on Defendants' motion to
dismiss, and subsequently, the case was taken under
advisement. Leona Weber, on July 24, 1972, noticed the
defendants of the intention to take oral depositions of Dr.
George Garver, Dr. George Oser and Dr. Leonard R. Robbins
on August 4, 1972, and the Court, on August 3, 1972,
granted defendants' motion to quash the depositions.

"Congress shall make no law respecting an establishment
of religion, or prohibiting the free exercise thereof
***"

The Supreme Court first recognized the applicability of
this provision to the States in a concurring opinion by
Justice Cardozo in Hamilton v. University of
California, 293 U.S. 245, 55 S.Ct. 197, 79 L.Ed. 343
(1934).

3. In
School District of Abington Township v.
Schempp, 374 U.S. 203, 83 S.Ct. 1560, 10 L.Ed.2d 844
(1963), the Supreme Court held that the State may not
establish a "religion of secularism" in the sense of
affirmatively opposing or showing hostility to religion and
thus preferring those who believe in no religion over those
who do believe.

"The term 'religion' has reference to one's view of his
relation to his Creator, and to the obligations they impose
of reverence for his being and character, and of obedience
to his will." Id., at 342, 10 S.Ct. at
300.

6. If this
approach were applied in other areas, teachers might be
obliged to provide equal time for an exposition of the
Mormon belief in the inequality of the races, and for
indoctrination in the Christian Science view of health and
disease.

"All textbooks on physiology and hygiene purchased in
the future for use in the public schools of this State
shall include at least one chapter on the effects of
alcohol and narcotics. Although physiology and hygiene must
be taught in all public schools, any child may be exempted,
without penalty, from receiving instruction therein if his
parent or guardian presents to the school principal a
signed statement that the teaching of disease, its
symptoms, development and treatment, and the viewing of
pictures or motion pictures on such subjects conflict with
the religious teachings of a well- established church or
denomination to which the parent or guardian and the child
belong."